New York State Court of Claims

New York State Court of Claims

TELLER v. THE STATE OF NEW YORK, #2001-015-154, Claim No. 100679, Motion No. M-63216


Claim dismissed upon claimant's failure to resume prosecution of the action within 90 days of receipt of a demand pursuant to CPLR 3216.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Elaine Teller, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 18, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3216 dismissing the claim for neglect to prosecute is granted. In a claim filed on July 8, 1999, claimant asserts that she has been employed as a correction officer at the Ulster Correctional Facility in Napanoch, New York since 1991 and alleges that she was sexually harassed by two fellow correction officers during the period August 1, 1998 through June of 1999. She asserts that the situation persisted despite complaints to her superiors. As a result of a preliminary conference the Court issued an order filed on September 28, 1999 which directed that discovery be completed and a note of issue filed on or before September 15, 2000.

At the time the claim was filed claimant was represented by counsel. Her attorney by motion (M-61040) sought and obtained an order permitting his withdrawal from the claim upon a showing of irreconcilable differences. The decision and order permitting the withdrawal was filed on March 28, 2000 and provided a stay of all proceedings related to the claim until April 21, 2000.

Claimant failed to respond to the State's discovery demands and a second telephone conference with the Court was held on October 4, 2000. At that conference claimant was directed to serve responses to the defendant's discovery demands on or before November 13, 2000 and to submit to an examination before trial on December 14, 2000. Neither event occurred. A third telephone conference was scheduled on November 22, 2000 but the claimant failed to appear. On November 21, 2000 claimant forwarded to the Court by facsimile a letter requesting the cancellation of the telephone conference and advising the Court that claimant was seeking an alternative resolution. In her November 21, 2000 letter claimant referenced prior correspondence dated November 13, 2000 in which she intimated an intention to withdraw her claim[1] .

Under cover of letter dated November 30, 2000 the Court served upon claimant a demand pursuant to CPLR Rule 3216 that claimant resume prosecution of this action and directing claimant to serve and file a note of issue within 90 days of receipt of the demand. The demand further specified that a motion to dismiss the claim for unreasonably neglecting to proceed would result from claimant's default in complying with the demand. The Court served the demand by certified mail, return receipt requested and the receipt card indicates delivery occurred on December 8, 2000.

In support of the instant motion the defendant's attorney, Assistant Attorney General Belinda Wagner, affirms that claimant did not resume prosecution of her claim by March 1, 2001 and has neither responded to the outstanding discovery demands nor filed a note of issue. Claimant did not oppose the defendant's dismissal motion.

Upon the receipt of a demand to resume prosecution of the action or claim within 90 days by the filing of a trial term note of issue the claimant must either file the note of issue or move to extend the time period in which to do so (Phil Collins Constr. v Hollis, 247 AD2d 736). Claimant has failed to do either. To avoid dismissal claimant was required to demonstrate both the existence of a potentially meritorious claim and a justifiable excuse for the delay in responding to the Court's 90 day demand (Meyer v Booth Memorial Medical Center, ____ AD2d ____, 704 NYS2d 861). Claimant made no submission in opposition to the motion and the motion is, therefore, granted.

May 18, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 7, 2001;
  2. Affirmation of Belinda Wagner dated March 7, 2001 with exhibit;
  3. Copies of claimant's letters dated November 13, 2000, November 21, 2000 and April 10, 2001;
  4. Claim filed on July 8, 1999;
  5. Various orders and letters referred to in the decision and order.

[1]This sentiment was repeated in the last facsimile transmission from the claimant to the Court dated April 10, 2001.